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Постановление Европейского суда по правам человека от 01.04.2010 «Дело Павленко (Pavlenko) против России» [англ.]





> 91. The applicant complained that he had not had a fair trial. He alleged, in particular, that following his arrest he had been refused permission to be represented by a lawyer of his choice; that legal aid counsel D. had been inefficient; that he had been questioned in a coercive environment and had been forced to incriminate himself without the benefit of effective legal advice. He also contended in general terms that the prosecution had not proven his guilt and that the trial court had wrongly assessed the available evidence. Article 6 in the relevant parts reads as follows:
"1. In the determination of... any criminal charge against him, everyone is entitled to a fair... hearing...
3. Everyone charged with a criminal offence has the following minimum rights:
...
(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;..."
92. In addition, between 2004 and 2007 the applicant raised a number of new complaints relating to the criminal proceedings against him. In particular, he contended that a Ms S. had had no legal advice when she was compelled by police officers to make incriminating statements against him at the pre-trial stage of the proceedings; that the wording of certain pre-trial orders by the investigators violated the presumption of innocence; that between May and July 2001 he could see his privately-retained counsel S. in private but only in the presence of the investigator; and that he had not been afforded adequate time and facilities to study the case file.

A. Admissibility and scope of the case

93. As to the initial complaints concerning the pre-trial stage of the proceedings and the fairness of the trial, the Court considers, in the light of the parties' submissions, that this part of the application raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.
94. As regards the complaints first raised in 2004 - 2007, the Court considers that they cannot be seen as an elaboration of any previously aired complaint. The Court reiterates that the running of the six-month time-limit for the complaints not included in the initial application is not interrupted until the date when the complaint is first submitted to the Court (see Majski v. Croatia, No. 33593/03, § 33, 1 June 2006, citing Allan v. the United Kingdom (dec.), No. 48539/99, 28 August 2001). It follows that this part of the application has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

B. Merits

1. The parties' submissions

(a) The applicant
95. The applicant submitted that after his arrest he was placed in conditions which ruled out any effective legal advice and compelled him to confess to various offences. The applicant claimed that the investigator had arbitrarily prevented him from retaining K. as counsel. The applicant also argued that his mother had first learnt about his arrest from a third person on 6 February 2001. No meeting with her had been allowed for security reasons in February and March 2001. Investigator A. had misled the applicant's mother by stating that the applicant was satisfied with counsel D. and needed no other counsel. The applicant's objection notwithstanding, D. continued to act as counsel but refused any private consultations with the applicant. The applicant was beaten up and threatened during the "talks" with the police officers who operated



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